United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO CONSTRUE ANTITRUST COUNTERCLAIMS AS RECOUPMENT COUNTERCLAIMS
William J. Martínez Judge
On March 26, 2015, this Court granted summary judgment in favor of Counterclaim Defendant XY, LLC (“XY”) and Third-Party Defendant Inguran, LLC (“Inguran”), holding that Counterclaim Plaintiff and Third-Party Plaintiff Trans Ova Genetics, LC (“Trans Ova”) was barred by the statute of limitations from asserting its claims under the Sherman Act, 15 U.S.C. § 2. (ECF No. 284.) Before the Court is Trans Ova’s Motion to Construe Antitrust Counterclaims as Recoupment Counterclaims (“Motion”), which seeks to reassert the antitrust claims as claims in recoupment. (ECF No. 316.) For the reasons stated below, the Motion is granted as to the recoupment claims against XY, but denied as to the claims against Inguran.
Trans Ova’s operative Amended Answer and Counterclaims, filed on April 25, 2014, includes Sherman Act claims against both XY and Inguran but does not assert a recoupment defense. (ECF No. 192 at 59-60.) After the Court granted summary judgment on the Sherman Act counterclaims based on the statute of limitations, Trans Ova filed a Motion for Reconsideration. (ECF No. 288.) While the Reconsideration motion was pending, a Final Pretrial Order was entered in which Trans Ova included the following statement:
In the event the Court denies Trans Ova’s Motion for Reconsideration, Trans Ova will ask the Court to construe its antitrust counterclaims as affirmative defenses in the equitable nature of recoupment. The evidence and analysis of recoupment as a defense are identical to [the] affirmatively stated counterclaims, but permit only an offset against money damages awarded to XY rather than an affirmative damages award which could exceed any amount XY may be awarded. As a defense, recoupment is not subject to a limitation on actions.
(ECF No. 301 at 22.) The Court denied Trans Ova’s Motion for Reconsideration on September 23, 2015 (ECF No. 315), and the instant Motion followed.
The Court will discuss in turn each issue raised by Trans Ova’s Motion: (1) whether its pleadings may be amended to bring its substantive antitrust claims via a recoupment defense; and (2) whether such claims constitute proper claims in recoupment that may be asserted against XY and Inguran.
A. Legal Standard for Amendment
Trans Ova argues that its recoupment claims are factually and legally identical to claims already asserted in its Amended Counterclaims, and that “no true amendment is thus necessary, ” but nevertheless moves pursuant to Federal Rule of Civil Procedure 15(a)(2) for leave to amend its pleadings. (ECF No. 316 at 1.) The Court disagrees with Trans Ova’s assertion, made without any citation to authority, that no amendment is necessary when it attempts to raise a previously unasserted defense. Accordingly, as Trans Ova seeks to belatedly assert a recoupment defense, it must obtain leave to amend.
Rule 15(a)(2) requires a party to seek the Court’s leave to amend its pleadings where the time provided for a first amendment in Rule 15(a)(1) has passed, and where the opposing party has not consented to the amendment in writing. “The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). However, after the Scheduling Order’s deadline for amendment of pleadings has elapsed, a party seeking to amend must also show that “good cause” exists to modify the schedule under Rule 16(b)(4). Gorsuch, Ltd. v. Wells Fargo Nat’l Bank Assoc., 771 F.3d 1230, 1240-41 (10th Cir. 2014); SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518-19 (10th Cir. 1990). Trans Ova’s initial Motion does not discuss the good cause standard, but in reply to the assertion by XY and Inguran that such a showing is required, Trans Ova does not contest that it applies. (ECF No. 338 at 2-3.) Instead, Trans Ova argues that good cause has been shown and its delay in asserting these recoupment claims was appropriate. (Id.)
The Court first notes that Trans Ova’s decision not to plead recoupment in the alternative, particularly after XY and Inguran filed their Motion for Summary Judgment as to the antitrust claims (ECF No. 229), was a questionable strategy. Trans Ova contends in its Reply that the Court has already expressed its approval of Trans Ova’s counsel’s decision not to “burden the Court with additional paper” by filing the instant Motion until after receiving a ruling on the Motion for Reconsideration (see ECF No. 338 at 2-3), but Trans Ova misinterprets the Court’s statements as approving of Trans Ova’s delay in asserting recoupment after the deadline for amendments. To the contrary, the Court has not yet made a good cause finding as to that delay.
Regardless, the Court now finds that good cause exists here. While recoupment could-and perhaps should-have been pled in the alternative to the affirmative Sherman Act claims, that alternative pleading was unnecessary under this case’s particular circumstances because the entirety of the factual and legal basis for the defense had been timely pled and fully discovered. Because of the substantive equivalence of these claims, XY and Inguran were not prejudiced by the delay. Consequently, Trans Ova proceeded diligently after receiving the Court’s order denying reconsideration by promptly filing the instant Motion to add the recoupment defense. Accordingly, the Court finds that good cause exists to permit a modification of the amendment deadline under Rule 16(b)(4), and “freely give[s] leave” to amend under Rule 15(a)(2). Trans Ova’s recoupment defense shall therefore be permitted to remain as pled in the Final Pretrial Order, subject to the below analysis on the merits. (ECF No. 301 at 22.)
1. Elements of a ...